Barnes vs.

Glenn theatre

Facts
The petitioner is the state of Indiana represented by Atty. Barnes, while the respondents are The Kitty
Kat lounge inc. and Glen theatre.

The respondents both wished to provide totally nude dancing as entertainment, and previously accused
the state of Indiana of violating the1st amendment in applying the nudity prohibition on their
establishments. The petitioner contends that their restriction on nude dancing, and the minimum
requirement of pasties and g-strings for dancers is a valid restriction.

However, the Court of Appeals concluded that non-obscene nude dancing performed for entertainment
is a protected right under the first amendment (freedom of expression).

Atty. Barnes representing Indiana filed a petition of certiorari (asking Supreme Court to review
decision of court of appeals) on the decision of the court of appeals, where the Supreme Court accepted
the request.

Issue
The issue lies within Indiana’s statutory of prohibited nudity and its’ infringement upon freedom of
expression, and whether or not the court was correct in stating that nude entertainment provided by
establishments such as the Kitty Kat lounge and Glen theatre is in fact a form of expression protected
under the 1st amendment of the United States constitution.

Held
The judgment of the Court of Appeals was reversed, as the restriction on nude dancing is a valid “time,
place, or manner” restriction where government regulation is justified

Indiana’s public indecency statute is justified despite its incidental limitations on some expressive
activity

Ratio
The “time, place or manner test” was developed for evaluating restrictions on expression that take place
on public property

The US vs O’brien Case addressed justification of governmental restrictions and limitations on first
amendment freedoms (O’brien burned his draftcard on the steps of South Boston courthouse in front
of a sizable crowd)

Government regulation is sufficiently justified within the constitutional power of the government
(further government interest):

1) if it furthers important or substantial government interest

- protect morals and public order, traditional police power of the state is defined as t he
authority to provide for public health, safety, and morals
2) if the governmental interest is unrelated to the suppression of free expression
- Since the state is providing for morals and public order, the interest is unrelated to the
suppression of free expression. Respondents contend otherwise, saying Indiana seeks to prevent
the erotic message of such entertainment, when in fact it is not. The states minimum
 requirement of pasties and a g-string for dancers still allows for erotic messages, it is just less
graphic. Indiana does not contest erotic messages but public nudity
3) if the incidental restriction on alleged first amendment freedoms is no greater than is
essential to the furtherance of that interest
- Governmental interest is upheld in the prohibition which forwards the disapproval of nudity in
public places among strangers. It is not a means to some greater end, but an end in itself